Ex Parte Order passed in Other Class Suit No. 21/2014
The record is
taken up for passing necessary order. This is a suit for declaration that the judgment
and decree dated 12/11/2008 and 20/11/2008 respectively passed in the Other
Class Suit No. 115/2008 are not binding upon the plaintiffs. Perused the
plaint, deposition of plaintiff as P.W- 01 and 02, the documentary evidences
marked as exhibits No. 01-08 and the case record.
Upon such perusal
and consideration of the adduced evidences, it appears that the plaintiffs
claim that they and/or their predecessors (heirs of the recorded tenants) were
not a party to the Other Class Suit No. 115/2008, although they were a
necessary party to that suit on the basis of their title and possession to the
suit land. The materials available on the record reveal that the impugned
decree was passed in 2008, but through the deed No. 25628/77 & 3169/80, one
Salimuddin purchased in toto 13 decimal of land from Abdur Rahim alias
Rahimuddin, who was an heir of one Hafiz Mondon, the original owner of the
property described in the Schedule Kha. On perusal of the Ext: 01, it appears
that aforesaid Rahimuddin and Salimuddin, the predecessor of the plaintiffs of
the instant suit, were not impleaded as a party to the suit in question.
More importantly,
the plaintiffs claim in evidence that the aforesaid 13 decimal of land has also
been partitioned through a registered partition deed (No. 2085/10 dated
11.05.2010), and thus, the same is mutated in their name (vide ext: 2-7). In
addition, the PW02 adduced evidence on the point of the possession of the suit
land in a manner that he has been cultivating the pond on the same through taking
lease from the plaintiffs. The PW-01 is also found to be in the line of the
same proposition of the possession in the suit land. The respective lease deed
has also been produced before the court. Accordingly, it transpires that the
plaintiffs or their predecessor(s) was not made as a party to the suit in which
the impugned judgment and decree were passed, although they were a necessary
party thereto. It is therefore, since nothing contrary is proved in this
regard, it appears in evidence that the plaintiffs are now in the exclusive
possession of the suit land as having both possessory documents and oral
accounts. No doubt, a decree passed without impleading a necessary party is
subject to the jurisdiction of this court under section of 42 of the Specific
Relief Act, 1877.
Generally, law is
settled that ‘the burden lies on the Plaintiff to prove his case and he must
succeed on his own strength only and not at the weakness of the adversary’ (3
BLC 6). Furthermore, In this respect, it is also pertinent to mention that ‘the
plaintiffs in order to succeed must establish their own case by credible
evidence and weakness of the defendants is no ground for awarding a decree in
favor of the plaintiff’(67 DLR HCD 259). Since the plaintiff’s case has been
proved by evidence as well as sufficient implications as stated above, the plaintiffs
may get relief under section of 42 of the Specific Relief Act, 1877. Thus, the
suit deserves to be decreed. As such, it is decided that the plaintiff may get
the relief as prayed for.
Court fee paid is
sufficient.
Hence,
it is ordered
that the suit is decreed ex parte against the defendants without costs. It is hereby
declared that the judgment and decree dated 12/11/2008 and 20/11/2008
respectively passed by the court of first instance in the Other Class Suit No.
115/2008 are not binding upon the plaintiffs.